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October 2017, Volume 23, Number 4

UFW, ALRB, Unions

The July 14-30, 2017 California State Fair featured a first-ever exhibit on farm workers that highlighted photos of United Farm Workers union activities.

The documentary "Dolores" celebrates the life of UFW co-founder Dolores Huerta, who coined the phrase S¡ Se Puede (Yes We Can) and was given the Presidential Medal of Freedom in 2012. Huerta was born in 1930 in New Mexico and raised in Stockton, where she taught school before moving to Delano with Cesar Chavez in 1962. Huerta did not replace Chavez when he died in 1993 as head of the UFW, instead leaving to direct the Dolores Huerta Foundation http://doloreshuerta.org).

The UFW in October 2017 agreed to pay $1.3 million to 24 organizers who alleged they did not receive overtime pay and meal break compensation. Lead plaintiff Francisco Cerritos organized an employee union, La Union Es Para Todo, and was fired in May 2013.

ALRB. The UFW has represented 660 workers at the Royal Oaks facility of Monterey Mushrooms near Watsonville since 1995. Two workers charged that the UFW violated their rights by threatening them for engaging in protected activities, including retaliating against them after they protested the UFW's alleged substandard representation.

There were internal tensions at the UFW office in Salinas and dissatisfied workers at UFW-represented Dole Berry North. UFW office workers formed a union, sued the UFW for unpaid overtime, and won a settlement.

Some of the Monterey Mushroom workers were dissatisfied with their UFW contract administrator and circulated a petition to have him removed. He retaliated against them, prompting the workers' complaint. The ALJ ordered the UFW to cease and desist from retaliating against the Monterey Mushroom workers it represents and to post and read a notice of the UFW's interference with their rights.

The Gerawan Farming case continues. The California Supreme Court heard arguments on September 5, 2017 on whether the 2002 Mandatory Mediation and Conciliation (MMC) law is constitutional and whether Gerawan may refuse to implement a MMC-issued contract because Gerawan believes that the UFW has abandoned the bargaining unit. Tri-Fanucchi Farms also made an abandonment defense in its opposition to ALRB-imposed make whole; the UFW did not request bargaining between 1988 and 2012.

The state, defending MMC, said that the Legislature decided that a farm worker union remains certified until it is decertified. Gerawan, for example, argues that the UFW abandoned the Gerawan bargaining unit for almost two decades after 1994, and thus could not claim to represent Gerawan's different labor force in 2012. The UFW requested that Gerawan bargain and, when bargaining failed to yield an agreement, requested MMC.

The ALRB certified the UFW as bargaining representative for Gerawan workers in July 1992, but no contract was negotiated during a February 1995 bargaining session, and there were no further negotiations. In 2002, California enacted an MMC law that allows unions negotiating first contracts after 2003, or had certifications before 2002 where employers committed an unfair labor practice, to request a mediator to help reach an agreement. If mediation fails, the mediator becomes an arbitrator and develops a contract that the ALRB can order to be implemented.

Gerawan refused to implement the arbitrator's contract, believing that its employees want to decertify the UFW. Votes from a November 2013 de-certification election among Gerawan workers were not counted because the ALRB found that Gerawan interfered with the decertification effort. Gerawan challenged the constitutionality of MMC, and a state court stayed the ALRB's decision requiring Gerawan to implement the arbitrator's contract.

NLRB. Pending bills such as HR 3441 would limit the impacts of the NLRB's 2015 Browning-Ferris decision that found businesses with indirect control over the employees of contractors who bring workers into their business are jointly liable for the labor law violations of their contractors. Republicans attacked the Browning-Ferris decision for interfering with the franchise model, saying the NLRB's Browning-Ferris decision was an effort to hold McDonald's jointly liable for labor law violations at its franchisees.

DOL's Wage and Hour Division made agreements with Subway in 2016 and Sonic in 2017 to have these master franchisors train franchisees on labor law compliance without being considered a joint employer for the purposes of labor laws that WHD enforces.

The United Auto Workers failed to win an election to represent half of the 6,400 mostly Black workers at Nissan's Canton, Michigan plant in August 2017. The vote was 2,244 for no union and 1,307 for the UAW; temp workers on contract could not vote. Nissan pays veteran workers an average $26 an hour, similar to wages at UAW-represented plants in northern US states such as Michigan. The UAW lost an election to represent Nissan workers in Smyrna, Tennessee in 2001, and began to organize in Canton in 2012.

Cinelease, which rents equipment to the motion picture industry, rechecked the documents of 42 mostly immigrant workers and terminated some just before a vote on representation by Teamsters Local 399 in December 2015. An NLRB ALJ found that Cinelease unfairly interfered with the election, and ordered Cinelease to recognize and bargain with Teamsters Local 399.

The US Supreme Court in September 2017 agreed to decide whether public sector unions may require the workers they represent who are not union members to help pay for collective bargaining. In the 2016 Friedrichs v. California Teachers Association decision, the justices split 4-4, leaving a lower court decision requiring compulsory payments in effect. The 1977 Abood decision concluded that workers do not have to pay for union political activities, but did have to pay for collective bargaining costs.

The rise of self-driving cars may lead to conflicts between unions. The UAW generally favors the development of self-driving cars, expecting more jobs for its members making cars, while the Teamsters fears that its member-drivers could be displaced. Bills pending in Congress would allow the National Highway Traffic Safety Administration to establish safety standards for self-driving cars and prohibit states from regulating the performance or design of autonomous cars.